Threats to State Constitutional Abortion Protections 

With the 2024 election less than a month away, state ballot initiatives have become a flashpoint in ongoing struggles over reproductive rights. Voters in 10 states are set to consider at least one abortion-related ballot measure. Attention has so far centered on whether abortion-rights supporters can continue their winning streak. Less attention has been paid to the hurdles facing the enforcement of ballot initiatives after they pass. Even a successful ballot measure could mean little in practice if the president, federal lawmakers, and other federal officials are hostile to abortion rights. State legislatures and supreme courts can also limit the reach of constitutional amendments protecting abortion rights.

Federal legislation could undo state constitutional protections

The federal government could take steps to limit abortion access, even in states that passed ballot initiatives protecting it. 

If lawmakers hostile to abortion rights win control of both houses of Congress and pass a ban on abortion, that law would end up on the president’s desk. The president can veto such a bill or sign it into law. Should the president sign the ban, this new federal law would preempt state constitutional protections.

Federal officials could also undermine state abortion rights using the Comstock Act, a 19th-century obscenity law that anti-abortion leaders have framed as a de facto ban on mailing any abortion-related drugs or paraphernalia. The abortion provisions of Project 2025 focus on the Comstock Act and prominent anti-abortion groups have pushed Comstock strategies. 

This leaves open the possibility of a federal Comstock prosecution against a high-profile defendant, like drug companies or Planned Parenthood. Any such defendant would challenge the interpretation of the Comstock Act that anti-abortion groups have developed — and maybe the constitutionality of the law. But Justices Samuel Alito and Clarence Thomas have already signaled their support for anti-abortion interpretations of the Comstock Act, and their conservative colleagues might share this view. Because the Comstock Act is a federal law, it would likely preempt state-level protections for reproductive rights, including ballot initiatives, if anti-abortion activists’ strategy works. 

Federal courts threaten state abortion rights

The federal courts could create additional hurdles to the enforcement of ballot initiatives down the line. The next president would nominate dozens, maybe hundreds, of judges to federal courts. If some of these new judges have sympathy for the idea that the federal Constitution protects fetal rights, anti-abortion lawyers could successfully advance an argument that the word “person” in the Fourteenth Amendment applies from the moment an egg is fertilized — and that the Fourteenth Amendment thus grants zygotes, embryos, and fetuses rights to due process and equal protection. A decision upholding federal fetal rights could invalidate state constitutional protections for reproductive rights. 

State constitutional rights require fair state courts

In the nearer term come obstacles related to state supreme courts. By design, ballot measures do not spell out every detail as to how they should be enforced or interpreted, which leaves a great deal of power to state supreme courts. Courts will decide whether laws that stop short of complete bans, such as lengthy waiting periods, parental involvement requirements, or limits on specific procedures, violate newly created state constitutional protections for abortion care. 

Those answers, of course, will depend on the judges issuing the decisions. Partisan control of supreme courts in states that have already passed ballot initiatives, including Ohio and Michigan, is up for grabs in November. In Florida and Arizona, which both have abortion-related ballot measures going before the electorate this year, supreme court justices are facing retention elections. The race for the chief justice’s seat in Kentucky, which rejected an anti-abortion ballot initiative in 2022, could determine the outcome of a future challenge to the state’s near-total abortion restrictions. And in Montana, where voters will consider an abortion-rights measure this fall, national conservative groups have spent large sums in support of justices sympathetic to their agenda. Even if voters create broad protections for reproductive rights, state judges could interpret those same rights narrowly and reopen the door to restrictions. 

And for the moment, some state courts may be more open than federal courts to conservative demands to recognize constitutional fetal rights. That was certainly the signal sent by the Alabama Supreme Court in LePage v. Center of Reproductive Medicine. While the court in LePage focused only on state legislation related to the wrongful death of a child, the logic of the majority’s ruling rested on constitutional interpretation and seemed to reflect an openness to broader arguments for fetal rights. Some of the families involved in LePage have now challenged the constitutionality of an Alabama law protecting in vitro fertilization providers from criminal and civil liability, seeking recognition of state constitutional fetal rights. 

Justices on the Florida Supreme Court have also expressed interest in the theory that the state’s constitution protects fetal personhood. What would happen if a court in a state that has a reproductive rights amendment wants to protect fetal personhood? It may seem that voters’ embrace of reproductive rights — which would be recent and clear — would supersede any recognition of fetal rights, which at best would be contested and vaguely implied rather than clearly spelled out in the text of state constitutions. But anti-abortion lawyers argue that the right to life is paramount because life is a precondition for the exercise of other rights and that, as a result, fetal rights would trump even rights recognized by ballot initiatives. During questions at oral argument, in a footnote in the majority opinion, and in the opinions of those writing in dissent, conservatives on the Florida high court suggested that they may be open to this sort of argument. 

States courts can also make it harder for ballot initiatives to succeed in the first place. The Ohio Supreme Court greenlit a ballot measure last year that would have raised the threshold for successful proposals to 60 percent. (Voters later rejected that proposal and approved a measure on reproductive rights.) And the Arkansas Supreme Court just handed down a ruling ensuring that a pro-abortion rights ballot initiative would not go before voters this year because the group sponsoring the measure didn’t submit a document certifying the proper training of paid canvassers at the same time as other paperwork. 

State legislatures could undermine abortion rights

State legislatures could throw up obstacles of their own. Florida offers a powerful illustration of how this could happen. In 2018, 65 percent of Florida voters passed a ballot measure restoring the voting rights of people with felony convictions after they completed their sentences. The following year, Republican lawmakers pushed through a bill, said to implement the new ballot measure, that prevented re-enfranchisement until affected Floridians had discharged certain legal financial obligations. A 2023 study found that Florida leads the nation in the disenfranchisement of people with felony convictions, with approximately 80 percent unable to vote because of a related financial obligation. Legislatures could similarly frustrate voters’ objectives after the passage of an abortion-rights amendment. 

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There is no question that ballot measures on reproductive rights will be one of the major stories of the 2024 election. But it is equally clear that reproductive rights won’t be guaranteed in a state just because a ballot measure succeeds. 

Mary Ziegler is the Martin Luther King Jr. Professor of Law at the University of California Davis School of Law.

Suggested Citation: Mary Ziegler, Threats to State Constitutional Abortion Protections, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Oct. 8, 2024), https://statecourtreport.org/our-work/analysis-opinion/threats-state-constitutional-abortion-protections